e legco reso12062-e
TRANSCRIPT
MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS ORDINANCE
RESOLUTION
(Under section 4 of the Mutual Legal Assistance in Criminal Matters Ordinance (Cap. 525))
RESOLVED that the Mutual Legal Assistance in Criminal Matters
(Corruption) Order, made by the Chief Executive in Council
on 22 May 2007, be approved.
MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS (CORRUPTION) ORDER
(Made by the Chief Executive in Council under section 4 of the Mutual Legal Assistance in Criminal Matters Ordinance (Cap. 525) subject to the approval of
the Legislative Council)
1. Commencement This Order shall come into operation on a day to be appointed by the
Secretary for Security by notice published in the Gazette.
2. Ordinance to apply between Hong Kong and certain places outside Hong Kong In relation to the arrangements for mutual legal assistance the terms of
which are recited in Schedule 1, it is directed that the Ordinance shall, subject to
the modifications specified in Schedule 2, apply as between Hong Kong and the
places outside Hong Kong to which the arrangements relate.
SCHEDULE 1 [s. 2]
UNITED NATIONS CONVENTION AGAINST CORRUPTION
PREAMBLE
The States Parties to this Convention,
Concerned about the seriousness of problems and threats posed by
corruption to the stability and security of societies, undermining the institutions
and values of democracy, ethical values and justice and jeopardizing sustainable
development and the rule of law,
Concerned also about the links between corruption and other forms of
crime, in particular organized crime and economic crime, including money-
laundering,
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Concerned further about cases of corruption that involve vast quantities
of assets, which may constitute a substantial proportion of the resources of States,
and that threaten the political stability and sustainable development of those
States,
Convinced that corruption is no longer a local matter but a transnational
phenomenon that affects all societies and economies, making international
cooperation to prevent and control it essential,
Convinced also that a comprehensive and multidisciplinary approach is
required to prevent and combat corruption effectively,
Convinced further that the availability of technical assistance can play an
important role in enhancing the ability of States, including by strengthening
capacity and by institution-building, to prevent and combat corruption
effectively,
Convinced that the illicit acquisition of personal wealth can be
particularly damaging to democratic institutions, national economies and the rule
of law,
Determined to prevent, detect and deter in a more effective manner
international transfers of illicitly acquired assets and to strengthen international
cooperation in asset recovery,
Acknowledging the fundamental principles of due process of law in
criminal proceedings and in civil or administrative proceedings to adjudicate
property rights,
Bearing in mind that the prevention and eradication of corruption is a
responsibility of all States and that they must cooperate with one another, with
the support and involvement of individuals and groups outside the public sector,
such as civil society, non-governmental organizations and community-based
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organizations, if their efforts in this area are to be effective,
Bearing also in mind the principles of proper management of public
affairs and public property, fairness, responsibility and equality before the law
and the need to safeguard integrity and to foster a culture of rejection of
corruption,
Commending the work of the Commission on Crime Prevention and
Criminal Justice and the United Nations Office on Drugs and Crime in
preventing and combating corruption,
Recalling the work carried out by other international and regional
organizations in this field, including the activities of the African Union, the
Council of Europe, the Customs Cooperation Council (also known as the World
Customs Organization), the European Union, the League of Arab States, the
Organisation for Economic Cooperation and Development and the Organization
of American States,
Taking note with appreciation of multilateral instruments to prevent and
combat corruption, including, inter alia, the Inter-American Convention against
Corruption, adopted by the Organization of American States on 29 March 1996,
the Convention on the Fight against Corruption involving Officials of the
European Communities or Officials of Member States of the European Union,
adopted by the Council of the European Union on 26 May 1997, the Convention
on Combating Bribery of Foreign Public Officials in International Business
Transactions, adopted by the Organisation for Economic Cooperation and
Development on 21 November 1997, the Criminal Law Convention on
Corruption, adopted by the Committee of Ministers of the Council of Europe on
27 January 1999, the Civil Law Convention on Corruption, adopted by the
Committee of Ministers of the Council of Europe on 4 November 1999, and the
African Union Convention on Preventing and Combating Corruption, adopted by
the Heads of State and Government of the African Union on 12 July 2003,
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Welcoming the entry into force on 29 September 2003 of the United
Nations Convention against Transnational Organized Crime,
Have agreed as follows:
Chapter I
General provisions
Article 1
Statement of purpose
The purposes of this Convention are:
(a) To promote and strengthen measures to prevent and combat
corruption more efficiently and effectively;
(b) To promote, facilitate and support international cooperation and
technical assistance in the prevention of and fight against corruption, including
in asset recovery;
(c) To promote integrity, accountability and proper management of
public affairs and public property.
Article 2
Use of terms
For the purposes of this Convention:
(a) “Public official” shall mean: (i) any person holding a legislative,
executive, administrative or judicial office of a State Party, whether appointed or
elected, whether permanent or temporary, whether paid or unpaid, irrespective of
that person’s seniority; (ii) any other person who performs a public function,
including for a public agency or public enterprise, or provides a public service,
as defined in the domestic law of the State Party and as applied in the pertinent
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area of law of that State Party; (iii) any other person defined as a “public
official” in the domestic law of a State Party. However, for the purpose of some
specific measures contained in chapter II of this Convention, “public official”
may mean any person who performs a public function or provides a public
service as defined in the domestic law of the State Party and as applied in the
pertinent area of law of that State Party;
(b) “Foreign public official” shall mean any person holding a
legislative, executive, administrative or judicial office of a foreign country,
whether appointed or elected; and any person exercising a public function for a
foreign country, including for a public agency or public enterprise;
(c) “Official of a public international organization” shall mean an
international civil servant or any person who is authorized by such an
organization to act on behalf of that organization;
(d) “Property” shall mean assets of every kind, whether corporeal or
incorporeal, movable or immovable, tangible or intangible, and legal documents
or instruments evidencing title to or interest in such assets;
(e) “Proceeds of crime” shall mean any property derived from or
obtained, directly or indirectly, through the commission of an offence;
(f) “Freezing” or “seizure” shall mean temporarily prohibiting the
transfer, conversion, disposition or movement of property or temporarily
assuming custody or control of property on the basis of an order issued by a
court or other competent authority;
(g) “Confiscation”, which includes forfeiture where applicable, shall
mean the permanent deprivation of property by order of a court or other
competent authority;
(h) “Predicate offence” shall mean any offence as a result of which
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proceeds have been generated that may become the subject of an offence as
defined in article 23 of this Convention;
(i) “Controlled delivery” shall mean the technique of allowing illicit
or suspect consignments to pass out of, through or into the territory of one or
more States, with the knowledge and under the supervision of their competent
authorities, with a view to the investigation of an offence and the identification
of persons involved in the commission of the offence.
Article 3
Scope of application
1. This Convention shall apply, in accordance with its terms, to the
prevention, investigation and prosecution of corruption and to the freezing,
seizure, confiscation and return of the proceeds of offences established in
accordance with this Convention.
2. For the purposes of implementing this Convention, it shall not be
necessary, except as otherwise stated herein, for the offences set forth in it to
result in damage or harm to state property.
Article 4
Protection of sovereignty
1. States Parties shall carry out their obligations under this
Convention in a manner consistent with the principles of sovereign equality and
territorial integrity of States and that of non-intervention in the domestic affairs
of other States.
2. Nothing in this Convention shall entitle a State Party to undertake
in the territory of another State the exercise of jurisdiction and performance of
functions that are reserved exclusively for the authorities of that other State by
its domestic law.
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Chapter II
Preventive measures
Article 5
Preventive anti-corruption policies and practices
1. Each State Party shall, in accordance with the fundamental
principles of its legal system, develop and implement or maintain effective,
coordinated anti-corruption policies that promote the participation of society and
reflect the principles of the rule of law, proper management of public affairs and
public property, integrity, transparency and accountability.
2. Each State Party shall endeavour to establish and promote effective
practices aimed at the prevention of corruption.
3. Each State Party shall endeavour to periodically evaluate relevant
legal instruments and administrative measures with a view to determining their
adequacy to prevent and fight corruption.
4. States Parties shall, as appropriate and in accordance with the
fundamental principles of their legal system, collaborate with each other and
with relevant international and regional organizations in promoting and
developing the measures referred to in this article. That collaboration may
include participation in international programmes and projects aimed at the
prevention of corruption.
Article 6
Preventive anti-corruption body or bodies
1. Each State Party shall, in accordance with the fundamental
principles of its legal system, ensure the existence of a body or bodies, as
appropriate, that prevent corruption by such means as:
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(a) Implementing the policies referred to in article 5 of this
Convention and, where appropriate, overseeing and coordinating the
implementation of those policies;
(b) Increasing and disseminating knowledge about the prevention of
corruption.
2. Each State Party shall grant the body or bodies referred to in
paragraph 1 of this article the necessary independence, in accordance with the
fundamental principles of its legal system, to enable the body or bodies to carry
out its or their functions effectively and free from any undue influence. The
necessary material resources and specialized staff, as well as the training that
such staff may require to carry out their functions, should be provided.
3. Each State Party shall inform the Secretary-General of the United
Nations of the name and address of the authority or authorities that may assist
other States Parties in developing and implementing specific measures for the
prevention of corruption.
Article 7
Public sector
1. Each State Party shall, where appropriate and in accordance with
the fundamental principles of its legal system, endeavour to adopt, maintain and
strengthen systems for the recruitment, hiring, retention, promotion and
retirement of civil servants and, where appropriate, other non-elected public
officials:
(a) That are based on principles of efficiency, transparency and
objective criteria such as merit, equity and aptitude;
(b) That include adequate procedures for the selection and training of
individuals for public positions considered especially vulnerable to corruption
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and the rotation, where appropriate, of such individuals to other positions;
(c) That promote adequate remuneration and equitable pay scales,
taking into account the level of economic development of the State Party;
(d) That promote education and training programmes to enable them to
meet the requirements for the correct, honourable and proper performance of
public functions and that provide them with specialized and appropriate training
to enhance their awareness of the risks of corruption inherent in the performance
of their functions. Such programmes may make reference to codes or standards
of conduct in applicable areas.
2. Each State Party shall also consider adopting appropriate
legislative and administrative measures, consistent with the objectives of this
Convention and in accordance with the fundamental principles of its domestic
law, to prescribe criteria concerning candidature for and election to public office.
3. Each State Party shall also consider taking appropriate legislative
and administrative measures, consistent with the objectives of this Convention
and in accordance with the fundamental principles of its domestic law, to
enhance transparency in the funding of candidatures for elected public office and,
where applicable, the funding of political parties.
4. Each State Party shall, in accordance with the fundamental
principles of its domestic law, endeavour to adopt, maintain and strengthen
systems that promote transparency and prevent conflicts of interest.
Article 8
Codes of conduct for public officials
1. In order to fight corruption, each State Party shall promote, inter
alia, integrity, honesty and responsibility among its public officials, in
accordance with the fundamental principles of its legal system.
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2. In particular, each State Party shall endeavour to apply, within its
own institutional and legal systems, codes or standards of conduct for the correct,
honourable and proper performance of public functions.
3. For the purposes of implementing the provisions of this article,
each State Party shall, where appropriate and in accordance with the
fundamental principles of its legal system, take note of the relevant initiatives of
regional, interregional and multilateral organizations, such as the International
Code of Conduct for Public Officials contained in the annex to General
Assembly resolution 51/59 of 12 December 1996.
4. Each State Party shall also consider, in accordance with the
fundamental principles of its domestic law, establishing measures and systems to
facilitate the reporting by public officials of acts of corruption to appropriate
authorities, when such acts come to their notice in the performance of their
functions.
5. Each State Party shall endeavour, where appropriate and in
accordance with the fundamental principles of its domestic law, to establish
measures and systems requiring public officials to make declarations to
appropriate authorities regarding, inter alia, their outside activities, employment,
investments, assets and substantial gifts or benefits from which a conflict of
interest may result with respect to their functions as public officials.
6. Each State Party shall consider taking, in accordance with the
fundamental principles of its domestic law, disciplinary or other measures
against public officials who violate the codes or standards established in
accordance with this article.
Article 9
Public procurement and management of public finances
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1. Each State Party shall, in accordance with the fundamental
principles of its legal system, take the necessary steps to establish appropriate
systems of procurement, based on transparency, competition and objective
criteria in decision-making, that are effective, inter alia, in preventing corruption.
Such systems, which may take into account appropriate threshold values in their
application, shall address, inter alia:
(a) The public distribution of information relating to procurement
procedures and contracts, including information on invitations to tender and
relevant or pertinent information on the award of contracts, allowing potential
tenderers sufficient time to prepare and submit their tenders;
(b) The establishment, in advance, of conditions for participation,
including selection and award criteria and tendering rules, and their publication;
(c) The use of objective and predetermined criteria for public
procurement decisions, in order to facilitate the subsequent verification of the
correct application of the rules or procedures;
(d) An effective system of domestic review, including an effective
system of appeal, to ensure legal recourse and remedies in the event that the
rules or procedures established pursuant to this paragraph are not followed;
(e) Where appropriate, measures to regulate matters regarding
personnel responsible for procurement, such as declaration of interest in
particular public procurements, screening procedures and training requirements.
2. Each State Party shall, in accordance with the fundamental
principles of its legal system, take appropriate measures to promote transparency
and accountability in the management of public finances. Such measures shall
encompass, inter alia:
(a) Procedures for the adoption of the national budget;
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(b) Timely reporting on revenue and expenditure;
(c) A system of accounting and auditing standards and related
oversight;
(d) Effective and efficient systems of risk management and internal
control; and
(e) Where appropriate, corrective action in the case of failure to
comply with the requirements established in this paragraph.
3. Each State Party shall take such civil and administrative measures
as may be necessary, in accordance with the fundamental principles of its
domestic law, to preserve the integrity of accounting books, records, financial
statements or other documents related to public expenditure and revenue and to
prevent the falsification of such documents.
Article 10
Public reporting
Taking into account the need to combat corruption, each State Party
shall, in accordance with the fundamental principles of its domestic law, take
such measures as may be necessary to enhance transparency in its public
administration, including with regard to its organization, functioning and
decision-making processes, where appropriate. Such measures may include, inter
alia:
(a) Adopting procedures or regulations allowing members of the
general public to obtain, where appropriate, information on the organization,
functioning and decision-making processes of its public administration and, with
due regard for the protection of privacy and personal data, on decisions and legal
acts that concern members of the public;
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(b) Simplifying administrative procedures, where appropriate, in order
to facilitate public access to the competent decision-making authorities; and
(c) Publishing information, which may include periodic reports on the
risks of corruption in its public administration.
Article 11
Measures relating to the judiciary and prosecution services
1. Bearing in mind the independence of the judiciary and its crucial
role in combating corruption, each State Party shall, in accordance with the
fundamental principles of its legal system and without prejudice to judicial
independence, take measures to strengthen integrity and to prevent opportunities
for corruption among members of the judiciary. Such measures may include
rules with respect to the conduct of members of the judiciary.
2. Measures to the same effect as those taken pursuant to paragraph 1
of this article may be introduced and applied within the prosecution service in
those States Parties where it does not form part of the judiciary but enjoys
independence similar to that of the judicial service.
Article 12
Private sector
1. Each State Party shall take measures, in accordance with the
fundamental principles of its domestic law, to prevent corruption involving the
private sector, enhance accounting and auditing standards in the private sector
and, where appropriate, provide effective, proportionate and dissuasive civil,
administrative or criminal penalties for failure to comply with such measures.
2. Measures to achieve these ends may include, inter alia:
(a) Promoting cooperation between law enforcement agencies and
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relevant private entities;
(b) Promoting the development of standards and procedures designed
to safeguard the integrity of relevant private entities, including codes of conduct
for the correct, honourable and proper performance of the activities of business
and all relevant professions and the prevention of conflicts of interest, and for
the promotion of the use of good commercial practices among businesses and in
the contractual relations of businesses with the State;
(c) Promoting transparency among private entities, including, where
appropriate, measures regarding the identity of legal and natural persons
involved in the establishment and management of corporate entities;
(d) Preventing the misuse of procedures regulating private entities,
including procedures regarding subsidies and licences granted by public
authorities for commercial activities;
(e) Preventing conflicts of interest by imposing restrictions, as
appropriate and for a reasonable period of time, on the professional activities of
former public officials or on the employment of public officials by the private
sector after their resignation or retirement, where such activities or employment
relate directly to the functions held or supervised by those public officials during
their tenure;
(f) Ensuring that private enterprises, taking into account their structure
and size, have sufficient internal auditing controls to assist in preventing and
detecting acts of corruption and that the accounts and required financial
statements of such private enterprises are subject to appropriate auditing and
certification procedures.
3. In order to prevent corruption, each State Party shall take such
measures as may be necessary, in accordance with its domestic laws and
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regulations regarding the maintenance of books and records, financial statement
disclosures and accounting and auditing standards, to prohibit the following acts
carried out for the purpose of committing any of the offences established in
accordance with this Convention:
(a) The establishment of off-the-books accounts;
(b) The making of off-the-books or inadequately identified
transactions;
(c) The recording of non-existent expenditure;
(d) The entry of liabilities with incorrect identification of their objects;
(e) The use of false documents; and
(f) The intentional destruction of bookkeeping documents earlier than
foreseen by the law.
4. Each State Party shall disallow the tax deductibility of expenses
that constitute bribes, the latter being one of the constituent elements of the
offences established in accordance with articles 15 and 16 of this Convention
and, where appropriate, other expenses incurred in furtherance of corrupt
conduct.
Article 13
Participation of society
1. Each State Party shall take appropriate measures, within its means
and in accordance with fundamental principles of its domestic law, to promote
the active participation of individuals and groups outside the public sector, such
as civil society, non-governmental organizations and community-based
organizations, in the prevention of and the fight against corruption and to raise
public awareness regarding the existence, causes and gravity of and the threat
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posed by corruption. This participation should be strengthened by such measures
as:
(a) Enhancing the transparency of and promoting the contribution of
the public to decision-making processes;
(b) Ensuring that the public has effective access to information;
(c) Undertaking public information activities that contribute to non-
tolerance of corruption, as well as public education programmes, including
school and university curricula;
(d) Respecting, promoting and protecting the freedom to seek, receive,
publish and disseminate information concerning corruption. That freedom may
be subject to certain restrictions, but these shall only be such as are provided for
by law and are necessary:
(i) For respect of the rights or reputations of others;
(ii) For the protection of national security or ordre public or of public
health or morals.
2. Each State Party shall take appropriate measures to ensure that the
relevant anti-corruption bodies referred to in this Convention are known to the
public and shall provide access to such bodies, where appropriate, for the
reporting, including anonymously, of any incidents that may be considered to
constitute an offence established in accordance with this Convention.
Article 14
Measures to prevent money-laundering
1. Each State Party shall:
(a) Institute a comprehensive domestic regulatory and supervisory
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regime for banks and non-bank financial institutions, including natural or legal
persons that provide formal or informal services for the transmission of money
or value and, where appropriate, other bodies particularly susceptible to money-
laundering, within its competence, in order to deter and detect all forms of
money-laundering, which regime shall emphasize requirements for customer and,
where appropriate, beneficial owner identification, record-keeping and the
reporting of suspicious transactions;
(b) Without prejudice to article 46 of this Convention, ensure that
administrative, regulatory, law enforcement and other authorities dedicated to
combating money-laundering (including, where appropriate under domestic law,
judicial authorities) have the ability to cooperate and exchange information at
the national and international levels within the conditions prescribed by its
domestic law and, to that end, shall consider the establishment of a financial
intelligence unit to serve as a national centre for the collection, analysis and
dissemination of information regarding potential money-laundering.
2. States Parties shall consider implementing feasible measures to
detect and monitor the movement of cash and appropriate negotiable instruments
across their borders, subject to safeguards to ensure proper use of information
and without impeding in any way the movement of legitimate capital. Such
measures may include a requirement that individuals and businesses report the
cross-border transfer of substantial quantities of cash and appropriate negotiable
instruments.
3. States Parties shall consider implementing appropriate and feasible
measures to require financial institutions, including money remitters:
(a) To include on forms for the electronic transfer of funds and related
messages accurate and meaningful information on the originator;
(b) To maintain such information throughout the payment chain; and
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(c) To apply enhanced scrutiny to transfers of funds that do not
contain complete information on the originator.
4. In establishing a domestic regulatory and supervisory regime under
the terms of this article, and without prejudice to any other article of this
Convention, States Parties are called upon to use as a guideline the relevant
initiatives of regional, interregional and multilateral organizations against
money-laundering.
5. States Parties shall endeavour to develop and promote global,
regional, subregional and bilateral cooperation among judicial, law enforcement
and financial regulatory authorities in order to combat money-laundering.
Chapter III
Criminalization and law enforcement
Article 15
Bribery of national public officials
Each State Party shall adopt such legislative and other measures as may
be necessary to establish as criminal offences, when committed intentionally:
(a) The promise, offering or giving, to a public official, directly or
indirectly, of an undue advantage, for the official himself or herself or another
person or entity, in order that the official act or refrain from acting in the
exercise of his or her official duties;
(b) The solicitation or acceptance by a public official, directly or
indirectly, of an undue advantage, for the official himself or herself or another
person or entity, in order that the official act or refrain from acting in the
exercise of his or her official duties.
Article 16
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Bribery of foreign public officials and officials of public international organizations
1. Each State Party shall adopt such legislative and other measures as
may be necessary to establish as a criminal offence, when committed
intentionally, the promise, offering or giving to a foreign public official or an
official of a public international organization, directly or indirectly, of an undue
advantage, for the official himself or herself or another person or entity, in order
that the official act or refrain from acting in the exercise of his or her official
duties, in order to obtain or retain business or other undue advantage in relation
to the conduct of international business.
2. Each State Party shall consider adopting such legislative and other
measures as may be necessary to establish as a criminal offence, when
committed intentionally, the solicitation or acceptance by a foreign public
official or an official of a public international organization, directly or indirectly,
of an undue advantage, for the official himself or herself or another person or
entity, in order that the official act or refrain from acting in the exercise of his or
her official duties.
Article 17
Embezzlement, misappropriation or other diversion of property by a public official
Each State Party shall adopt such legislative and other measures as may
be necessary to establish as criminal offences, when committed intentionally, the
embezzlement, misappropriation or other diversion by a public official for his or
her benefit or for the benefit of another person or entity, of any property, public
or private funds or securities or any other thing of value entrusted to the public
official by virtue of his or her position.
Article 18
Trading in influence
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Each State Party shall consider adopting such legislative and other
measures as may be necessary to establish as criminal offences, when committed
intentionally:
(a) The promise, offering or giving to a public official or any other
person, directly or indirectly, of an undue advantage in order that the public
official or the person abuse his or her real or supposed influence with a view to
obtaining from an administration or public authority of the State Party an undue
advantage for the original instigator of the act or for any other person;
(b) The solicitation or acceptance by a public official or any other
person, directly or indirectly, of an undue advantage for himself or herself or for
another person in order that the public official or the person abuse his or her real
or supposed influence with a view to obtaining from an administration or public
authority of the State Party an undue advantage.
Article 19
Abuse of functions
Each State Party shall consider adopting such legislative and other
measures as may be necessary to establish as a criminal offence, when
committed intentionally, the abuse of functions or position, that is, the
performance of or failure to perform an act, in violation of laws, by a public
official in the discharge of his or her functions, for the purpose of obtaining an
undue advantage for himself or herself or for another person or entity.
Article 20
Illicit enrichment
Subject to its constitution and the fundamental principles of its legal
system, each State Party shall consider adopting such legislative and other
measures as may be necessary to establish as a criminal offence, when
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committed intentionally, illicit enrichment, that is, a significant increase in the
assets of a public official that he or she cannot reasonably explain in relation to
his or her lawful income.
Article 21
Bribery in the private sector
Each State Party shall consider adopting such legislative and other
measures as may be necessary to establish as criminal offences, when committed
intentionally in the course of economic, financial or commercial activities:
(a) The promise, offering or giving, directly or indirectly, of an undue
advantage to any person who directs or works, in any capacity, for a private
sector entity, for the person himself or herself or for another person, in order that
he or she, in breach of his or her duties, act or refrain from acting;
(b) The solicitation or acceptance, directly or indirectly, of an undue
advantage by any person who directs or works, in any capacity, for a private
sector entity, for the person himself or herself or for another person, in order that
he or she, in breach of his or her duties, act or refrain from acting.
Article 22
Embezzlement of property in the private sector
Each State Party shall consider adopting such legislative and other
measures as may be necessary to establish as a criminal offence, when
committed intentionally in the course of economic, financial or commercial
activities, embezzlement by a person who directs or works, in any capacity, in a
private sector entity of any property, private funds or securities or any other
thing of value entrusted to him or her by virtue of his or her position.
Article 23
Laundering of proceeds of crime
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1. Each State Party shall adopt, in accordance with fundamental
principles of its domestic law, such legislative and other measures as may be
necessary to establish as criminal offences, when committed intentionally:
(a) (i) The conversion or transfer of property, knowing that such
property is the proceeds of crime, for the purpose of concealing or disguising the
illicit origin of the property or of helping any person who is involved in the
commission of the predicate offence to evade the legal consequences of his or
her action;
(ii) The concealment or disguise of the true nature, source, location,
disposition, movement or ownership of or rights with respect to property,
knowing that such property is the proceeds of crime;
(b) Subject to the basic concepts of its legal system:
(i) The acquisition, possession or use of property, knowing, at the
time of receipt, that such property is the proceeds of crime;
(ii) Participation in, association with or conspiracy to commit, attempts
to commit and aiding, abetting, facilitating and counselling the
commission of any of the offences established in accordance with this
article.
2. For purposes of implementing or applying paragraph 1 of this
article:
(a) Each State Party shall seek to apply paragraph 1 of this article to
the widest range of predicate offences;
(b) Each State Party shall include as predicate offences at a minimum
a comprehensive range of criminal offences established in accordance with this
Convention;
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(c) For the purposes of subparagraph (b) above, predicate offences
shall include offences committed both within and outside the jurisdiction of the
State Party in question. However, offences committed outside the jurisdiction of
a State Party shall constitute predicate offences only when the relevant conduct
is a criminal offence under the domestic law of the State where it is committed
and would be a criminal offence under the domestic law of the State Party
implementing or applying this article had it been committed there;
(d) Each State Party shall furnish copies of its laws that give effect to
this article and of any subsequent changes to such laws or a description thereof
to the Secretary-General of the United Nations;
(e) If required by fundamental principles of the domestic law of a
State Party, it may be provided that the offences set forth in paragraph 1 of this
article do not apply to the persons who committed the predicate offence.
Article 24
Concealment
Without prejudice to the provisions of article 23 of this Convention,
each State Party shall consider adopting such legislative and other measures as
may be necessary to establish as a criminal offence, when committed
intentionally after the commission of any of the offences established in
accordance with this Convention without having participated in such offences,
the concealment or continued retention of property when the person involved
knows that such property is the result of any of the offences established in
accordance with this Convention.
Article 25
Obstruction of justice
Each State Party shall adopt such legislative and other measures as may
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be necessary to establish as criminal offences, when committed intentionally:
(a) The use of physical force, threats or intimidation or the promise,
offering or giving of an undue advantage to induce false testimony or to interfere
in the giving of testimony or the production of evidence in a proceeding in
relation to the commission of offences established in accordance with this
Convention;
(b) The use of physical force, threats or intimidation to interfere with
the exercise of official duties by a justice or law enforcement official in relation
to the commission of offences established in accordance with this Convention.
Nothing in this subparagraph shall prejudice the right of States Parties to have
legislation that protects other categories of public official.
Article 26
Liability of legal persons
1. Each State Party shall adopt such measures as may be necessary,
consistent with its legal principles, to establish the liability of legal persons for
participation in the offences established in accordance with this Convention.
2. Subject to the legal principles of the State Party, the liability of
legal persons may be criminal, civil or administrative.
3. Such liability shall be without prejudice to the criminal liability of
the natural persons who have committed the offences.
4. Each State Party shall, in particular, ensure that legal persons held
liable in accordance with this article are subject to effective, proportionate and
dissuasive criminal or non-criminal sanctions, including monetary sanctions.
Article 27
Participation and attempt
25
1. Each State Party shall adopt such legislative and other measures as
may be necessary to establish as a criminal offence, in accordance with its
domestic law, participation in any capacity such as an accomplice, assistant or
instigator in an offence established in accordance with this Convention.
2. Each State Party may adopt such legislative and other measures as
may be necessary to establish as a criminal offence, in accordance with its
domestic law, any attempt to commit an offence established in accordance with
this Convention.
3. Each State Party may adopt such legislative and other measures as
may be necessary to establish as a criminal offence, in accordance with its
domestic law, the preparation for an offence established in accordance with this
Convention.
Article 28
Knowledge, intent and purpose as elements of an offence
Knowledge, intent or purpose required as an element of an offence
established in accordance with this Convention may be inferred from objective
factual circumstances.
Article 29
Statute of limitations
Each State Party shall, where appropriate, establish under its domestic
law a long statute of limitations period in which to commence proceedings for
any offence established in accordance with this Convention and establish a
longer statute of limitations period or provide for the suspension of the statute of
limitations where the alleged offender has evaded the administration of justice.
Article 30
26
Prosecution, adjudication and sanctions
1. Each State Party shall make the commission of an offence
established in accordance with this Convention liable to sanctions that take into
account the gravity of that offence.
2. Each State Party shall take such measures as may be necessary to
establish or maintain, in accordance with its legal system and constitutional
principles, an appropriate balance between any immunities or jurisdictional
privileges accorded to its public officials for the performance of their functions
and the possibility, when necessary, of effectively investigating, prosecuting and
adjudicating offences established in accordance with this Convention.
3. Each State Party shall endeavour to ensure that any discretionary
legal powers under its domestic law relating to the prosecution of persons for
offences established in accordance with this Convention are exercised to
maximize the effectiveness of law enforcement measures in respect of those
offences and with due regard to the need to deter the commission of such
offences.
4. In the case of offences established in accordance with this
Convention, each State Party shall take appropriate measures, in accordance with
its domestic law and with due regard to the rights of the defence, to seek to
ensure that conditions imposed in connection with decisions on release pending
trial or appeal take into consideration the need to ensure the presence of the
defendant at subsequent criminal proceedings.
5. Each State Party shall take into account the gravity of the offences
concerned when considering the eventuality of early release or parole of persons
convicted of such offences.
6. Each State Party, to the extent consistent with the fundamental
27
principles of its legal system, shall consider establishing procedures through
which a public official accused of an offence established in accordance with this
Convention may, where appropriate, be removed, suspended or reassigned by
the appropriate authority, bearing in mind respect for the principle of the
presumption of innocence.
7. Where warranted by the gravity of the offence, each State Party, to
the extent consistent with the fundamental principles of its legal system, shall
consider establishing procedures for the disqualification, by court order or any
other appropriate means, for a period of time determined by its domestic law, of
persons convicted of offences established in accordance with this Convention
from:
(a) Holding public office; and
(b) Holding office in an enterprise owned in whole or in part by the
State.
8. Paragraph 1 of this article shall be without prejudice to the exercise
of disciplinary powers by the competent authorities against civil servants.
9. Nothing contained in this Convention shall affect the principle that
the description of the offences established in accordance with this Convention
and of the applicable legal defences or other legal principles controlling the
lawfulness of conduct is reserved to the domestic law of a State Party and that
such offences shall be prosecuted and punished in accordance with that law.
10. States Parties shall endeavour to promote the reintegration into
society of persons convicted of offences established in accordance with this
Convention.
Article 31
Freezing, seizure and confiscation
28
1. Each State Party shall take, to the greatest extent possible within its
domestic legal system, such measures as may be necessary to enable
confiscation of:
(a) Proceeds of crime derived from offences established in accordance
with this Convention or property the value of which corresponds to that of such
proceeds;
(b) Property, equipment or other instrumentalities used in or destined
for use in offences established in accordance with this Convention.
2. Each State Party shall take such measures as may be necessary to
enable the identification, tracing, freezing or seizure of any item referred to in
paragraph 1 of this article for the purpose of eventual confiscation.
3. Each State Party shall adopt, in accordance with its domestic law,
such legislative and other measures as may be necessary to regulate the
administration by the competent authorities of frozen, seized or confiscated
property covered in paragraphs 1 and 2 of this article.
4. If such proceeds of crime have been transformed or converted, in
part or in full, into other property, such property shall be liable to the measures
referred to in this article instead of the proceeds.
5. If such proceeds of crime have been intermingled with property
acquired from legitimate sources, such property shall, without prejudice to any
powers relating to freezing or seizure, be liable to confiscation up to the assessed
value of the intermingled proceeds.
6. Income or other benefits derived from such proceeds of crime,
from property into which such proceeds of crime have been transformed or
converted or from property with which such proceeds of crime have been
intermingled shall also be liable to the measures referred to in this article, in the
29
same manner and to the same extent as proceeds of crime.
7. For the purpose of this article and article 55 of this Convention,
each State Party shall empower its courts or other competent authorities to order
that bank, financial or commercial records be made available or seized. A State
Party shall not decline to act under the provisions of this paragraph on the
ground of bank secrecy.
8. States Parties may consider the possibility of requiring that an
offender demonstrate the lawful origin of such alleged proceeds of crime or
other property liable to confiscation, to the extent that such a requirement is
consistent with the fundamental principles of their domestic law and with the
nature of judicial and other proceedings.
9. The provisions of this article shall not be so construed as to
prejudice the rights of bona fide third parties.
10. Nothing contained in this article shall affect the principle that the
measures to which it refers shall be defined and implemented in accordance with
and subject to the provisions of the domestic law of a State Party.
Article 32
Protection of witnesses, experts and victims
1. Each State Party shall take appropriate measures in accordance
with its domestic legal system and within its means to provide effective
protection from potential retaliation or intimidation for witnesses and experts
who give testimony concerning offences established in accordance with this
Convention and, as appropriate, for their relatives and other persons close to
them.
2. The measures envisaged in paragraph 1 of this article may include,
inter alia, without prejudice to the rights of the defendant, including the right to
30
due process:
(a) Establishing procedures for the physical protection of such
persons, such as, to the extent necessary and feasible, relocating them and
permitting, where appropriate, non-disclosure or limitations on the disclosure of
information concerning the identity and whereabouts of such persons;
(b) Providing evidentiary rules to permit witnesses and experts to give
testimony in a manner that ensures the safety of such persons, such as permitting
testimony to be given through the use of communications technology such as
video or other adequate means.
3. States Parties shall consider entering into agreements or
arrangements with other States for the relocation of persons referred to in
paragraph 1 of this article.
4. The provisions of this article shall also apply to victims insofar as
they are witnesses.
5. Each State Party shall, subject to its domestic law, enable the views
and concerns of victims to be presented and considered at appropriate stages of
criminal proceedings against offenders in a manner not prejudicial to the rights
of the defence.
Article 33
Protection of reporting persons
Each State Party shall consider incorporating into its domestic legal
system appropriate measures to provide protection against any unjustified
treatment for any person who reports in good faith and on reasonable grounds to
the competent authorities any facts concerning offences established in
accordance with this Convention.
31
Article 34
Consequences of acts of corruption
With due regard to the rights of third parties acquired in good faith, each
State Party shall take measures, in accordance with the fundamental principles of
its domestic law, to address consequences of corruption. In this context, States
Parties may consider corruption a relevant factor in legal proceedings to annul or
rescind a contract, withdraw a concession or other similar instrument or take any
other remedial action.
Article 35
Compensation for damage
Each State Party shall take such measures as may be necessary, in
accordance with principles of its domestic law, to ensure that entities or persons
who have suffered damage as a result of an act of corruption have the right to
initiate legal proceedings against those responsible for that damage in order to
obtain compensation.
Article 36
Specialized authorities
Each State Party shall, in accordance with the fundamental principles of
its legal system, ensure the existence of a body or bodies or persons specialized
in combating corruption through law enforcement. Such body or bodies or
persons shall be granted the necessary independence, in accordance with the
fundamental principles of the legal system of the State Party, to be able to carry
out their functions effectively and without any undue influence. Such persons or
staff of such body or bodies should have the appropriate training and resources
to carry out their tasks.
Article 37
32
Cooperation with law enforcement authorities
1. Each State Party shall take appropriate measures to encourage
persons who participate or who have participated in the commission of an
offence established in accordance with this Convention to supply information
useful to competent authorities for investigative and evidentiary purposes and to
provide factual, specific help to competent authorities that may contribute to
depriving offenders of the proceeds of crime and to recovering such proceeds.
2. Each State Party shall consider providing for the possibility, in
appropriate cases, of mitigating punishment of an accused person who provides
substantial cooperation in the investigation or prosecution of an offence
established in accordance with this Convention.
3. Each State Party shall consider providing for the possibility, in
accordance with fundamental principles of its domestic law, of granting
immunity from prosecution to a person who provides substantial cooperation in
the investigation or prosecution of an offence established in accordance with this
Convention.
4. Protection of such persons shall be, mutatis mutandis, as provided
for in article 32 of this Convention.
5. Where a person referred to in paragraph 1 of this article located in
one State Party can provide substantial cooperation to the competent authorities
of another State Party, the States Parties concerned may consider entering into
agreements or arrangements, in accordance with their domestic law, concerning
the potential provision by the other State Party of the treatment set forth in
paragraphs 2 and 3 of this article.
Article 38
Cooperation between national authorities
33
Each State Party shall take such measures as may be necessary to
encourage, in accordance with its domestic law, cooperation between, on the one
hand, its public authorities, as well as its public officials, and, on the other hand,
its authorities responsible for investigating and prosecuting criminal offences.
Such cooperation may include:
(a) Informing the latter authorities, on their own initiative, where there
are reasonable grounds to believe that any of the offences established in
accordance with articles 15, 21 and 23 of this Convention has been committed;
or
(b) Providing, upon request, to the latter authorities all necessary
information.
Article 39
Cooperation between national authorities and the private sector
1. Each State Party shall take such measures as may be necessary to
encourage, in accordance with its domestic law, cooperation between national
investigating and prosecuting authorities and entities of the private sector, in
particular financial institutions, relating to matters involving the commission of
offences established in accordance with this Convention.
2. Each State Party shall consider encouraging its nationals and other
persons with a habitual residence in its territory to report to the national
investigating and prosecuting authorities the commission of an offence
established in accordance with this Convention.
Article 40
Bank secrecy
Each State Party shall ensure that, in the case of domestic criminal
34
investigations of offences established in accordance with this Convention, there
are appropriate mechanisms available within its domestic legal system to
overcome obstacles that may arise out of the application of bank secrecy laws.
Article 41
Criminal record
Each State Party may adopt such legislative or other measures as may be
necessary to take into consideration, under such terms as and for the purpose that
it deems appropriate, any previous conviction in another State of an alleged
offender for the purpose of using such information in criminal proceedings
relating to an offence established in accordance with this Convention.
Article 42
Jurisdiction
1. Each State Party shall adopt such measures as may be necessary to
establish its jurisdiction over the offences established in accordance with this
Convention when:
(a) The offence is committed in the territory of that State Party; or
(b) The offence is committed on board a vessel that is flying the flag
of that State Party or an aircraft that is registered under the laws of that State
Party at the time that the offence is committed.
2. Subject to article 4 of this Convention, a State Party may also
establish its jurisdiction over any such offence when:
(a) The offence is committed against a national of that State Party; or
(b) The offence is committed by a national of that State Party or a
stateless person who has his or her habitual residence in its territory; or
35
(c) The offence is one of those established in accordance with article
23, paragraph 1 (b) (ii), of this Convention and is committed outside its territory
with a view to the commission of an offence established in accordance with
article 23, paragraph 1 (a) (i) or (ii) or (b) (i), of this Convention within its
territory; or
(d) The offence is committed against the State Party.
3. For the purposes of article 44 of this Convention, each State Party
shall take such measures as may be necessary to establish its jurisdiction over
the offences established in accordance with this Convention when the alleged
offender is present in its territory and it does not extradite such person solely on
the ground that he or she is one of its nationals.
4. Each State Party may also take such measures as may be necessary
to establish its jurisdiction over the offences established in accordance with this
Convention when the alleged offender is present in its territory and it does not
extradite him or her.
5. If a State Party exercising its jurisdiction under paragraph 1 or 2 of
this article has been notified, or has otherwise learned, that any other States
Parties are conducting an investigation, prosecution or judicial proceeding in
respect of the same conduct, the competent authorities of those States Parties
shall, as appropriate, consult one another with a view to coordinating their
actions.
6. Without prejudice to norms of general international law, this
Convention shall not exclude the exercise of any criminal jurisdiction
established by a State Party in accordance with its domestic law.
Chapter IV
International cooperation
36
Article 43
International cooperation
1. States Parties shall cooperate in criminal matters in accordance
with articles 44 to 50 of this Convention. Where appropriate and consistent with
their domestic legal system, States Parties shall consider assisting each other in
investigations of and proceedings in civil and administrative matters relating to
corruption.
2. In matters of international cooperation, whenever dual criminality
is considered a requirement, it shall be deemed fulfilled irrespective of whether
the laws of the requested State Party place the offence within the same category
of offence or denominate the offence by the same terminology as the requesting
State Party, if the conduct underlying the offence for which assistance is sought
is a criminal offence under the laws of both States Parties.
Article 44
Extradition
1. This article shall apply to the offences established in accordance
with this Convention where the person who is the subject of the request for
extradition is present in the territory of the requested State Party, provided that
the offence for which extradition is sought is punishable under the domestic law
of both the requesting State Party and the requested State Party.
2. Notwithstanding the provisions of paragraph 1 of this article, a
State Party whose law so permits may grant the extradition of a person for any of
the offences covered by this Convention that are not punishable under its own
domestic law.
3. If the request for extradition includes several separate offences, at
least one of which is extraditable under this article and some of which are not
37
extraditable by reason of their period of imprisonment but are related to offences
established in accordance with this Convention, the requested State Party may
apply this article also in respect of those offences.
4. Each of the offences to which this article applies shall be deemed
to be included as an extraditable offence in any extradition treaty existing
between States Parties. States Parties undertake to include such offences as
extraditable offences in every extradition treaty to be concluded between them.
A State Party whose law so permits, in case it uses this Convention as the basis
for extradition, shall not consider any of the offences established in accordance
with this Convention to be a political offence.
5. If a State Party that makes extradition conditional on the existence
of a treaty receives a request for extradition from another State Party with which
it has no extradition treaty, it may consider this Convention the legal basis for
extradition in respect of any offence to which this article applies.
6. A State Party that makes extradition conditional on the existence of
a treaty shall:
(a) At the time of deposit of its instrument of ratification, acceptance
or approval of or accession to this Convention, inform the Secretary-General of
the United Nations whether it will take this Convention as the legal basis for
cooperation on extradition with other States Parties to this Convention; and
(b) If it does not take this Convention as the legal basis for cooperation
on extradition, seek, where appropriate, to conclude treaties on extradition with
other States Parties to this Convention in order to implement this article.
7. States Parties that do not make extradition conditional on the
existence of a treaty shall recognize offences to which this article applies as
extraditable offences between themselves.
38
8. Extradition shall be subject to the conditions provided for by the
domestic law of the requested State Party or by applicable extradition treaties,
including, inter alia, conditions in relation to the minimum penalty requirement
for extradition and the grounds upon which the requested State Party may refuse
extradition.
9. States Parties shall, subject to their domestic law, endeavour to
expedite extradition procedures and to simplify evidentiary requirements relating
thereto in respect of any offence to which this article applies.
10. Subject to the provisions of its domestic law and its extradition
treaties, the requested State Party may, upon being satisfied that the
circumstances so warrant and are urgent and at the request of the requesting
State Party, take a person whose extradition is sought and who is present in its
territory into custody or take other appropriate measures to ensure his or her
presence at extradition proceedings.
11. A State Party in whose territory an alleged offender is found, if it
does not extradite such person in respect of an offence to which this article
applies solely on the ground that he or she is one of its nationals, shall, at the
request of the State Party seeking extradition, be obliged to submit the case
without undue delay to its competent authorities for the purpose of prosecution.
Those authorities shall take their decision and conduct their proceedings in the
same manner as in the case of any other offence of a grave nature under the
domestic law of that State Party. The States Parties concerned shall cooperate
with each other, in particular on procedural and evidentiary aspects, to ensure the
efficiency of such prosecution.
12. Whenever a State Party is permitted under its domestic law to
extradite or otherwise surrender one of its nationals only upon the condition that
the person will be returned to that State Party to serve the sentence imposed as a
result of the trial or proceedings for which the extradition or surrender of the
39
person was sought and that State Party and the State Party seeking the
extradition of the person agree with this option and other terms that they may
deem appropriate, such conditional extradition or surrender shall be sufficient to
discharge the obligation set forth in paragraph 11 of this article.
13. If extradition, sought for purposes of enforcing a sentence, is
refused because the person sought is a national of the requested State Party, the
requested State Party shall, if its domestic law so permits and in conformity with
the requirements of such law, upon application of the requesting State Party,
consider the enforcement of the sentence imposed under the domestic law of the
requesting State Party or the remainder thereof.
14. Any person regarding whom proceedings are being carried out in
connection with any of the offences to which this article applies shall be
guaranteed fair treatment at all stages of the proceedings, including enjoyment of
all the rights and guarantees provided by the domestic law of the State Party in
the territory of which that person is present.
15. Nothing in this Convention shall be interpreted as imposing an
obligation to extradite if the requested State Party has substantial grounds for
believing that the request has been made for the purpose of prosecuting or
punishing a person on account of that person’s sex, race, religion, nationality,
ethnic origin or political opinions or that compliance with the request would
cause prejudice to that person’s position for any one of these reasons.
16. States Parties may not refuse a request for extradition on the sole
ground that the offence is also considered to involve fiscal matters.
17. Before refusing extradition, the requested State Party shall, where
appropriate, consult with the requesting State Party to provide it with ample
opportunity to present its opinions and to provide information relevant to its
allegation.
40
18. States Parties shall seek to conclude bilateral and multilateral
agreements or arrangements to carry out or to enhance the effectiveness of
extradition.
Article 45
Transfer of sentenced persons
States Parties may consider entering into bilateral or multilateral
agreements or arrangements on the transfer to their territory of persons
sentenced to imprisonment or other forms of deprivation of liberty for offences
established in accordance with this Convention in order that they may complete
their sentences there.
Article 46
Mutual legal assistance
1. States Parties shall afford one another the widest measure of
mutual legal assistance in investigations, prosecutions and judicial proceedings
in relation to the offences covered by this Convention.
2. Mutual legal assistance shall be afforded to the fullest extent
possible under relevant laws, treaties, agreements and arrangements of the
requested State Party with respect to investigations, prosecutions and judicial
proceedings in relation to the offences for which a legal person may be held
liable in accordance with article 26 of this Convention in the requesting State
Party.
3. Mutual legal assistance to be afforded in accordance with this
article may be requested for any of the following purposes:
(a) Taking evidence or statements from persons;
(b) Effecting service of judicial documents;
41
(c) Executing searches and seizures, and freezing;
(d) Examining objects and sites;
(e) Providing information, evidentiary items and expert evaluations;
(f) Providing originals or certified copies of relevant documents and
records, including government, bank, financial, corporate or business records;
(g) Identifying or tracing proceeds of crime, property, instrumentalities
or other things for evidentiary purposes;
(h) Facilitating the voluntary appearance of persons in the requesting
State Party;
(i) Any other type of assistance that is not contrary to the domestic
law of the requested State Party;
(j) Identifying, freezing and tracing proceeds of crime in accordance
with the provisions of chapter V of this Convention;
(k) The recovery of assets, in accordance with the provisions of
chapter V of this Convention.
4. Without prejudice to domestic law, the competent authorities of a
State Party may, without prior request, transmit information relating to criminal
matters to a competent authority in another State Party where they believe that
such information could assist the authority in undertaking or successfully
concluding inquiries and criminal proceedings or could result in a request
formulated by the latter State Party pursuant to this Convention.
5. The transmission of information pursuant to paragraph 4 of this
article shall be without prejudice to inquiries and criminal proceedings in the
State of the competent authorities providing the information. The competent
42
authorities receiving the information shall comply with a request that said
information remain confidential, even temporarily, or with restrictions on its use.
However, this shall not prevent the receiving State Party from disclosing in its
proceedings information that is exculpatory to an accused person. In such a case,
the receiving State Party shall notify the transmitting State Party prior to the
disclosure and, if so requested, consult with the transmitting State Party. If, in an
exceptional case, advance notice is not possible, the receiving State Party shall
inform the transmitting State Party of the disclosure without delay.
6. The provisions of this article shall not affect the obligations under
any other treaty, bilateral or multilateral, that governs or will govern, in whole or
in part, mutual legal assistance.
7. Paragraphs 9 to 29 of this article shall apply to requests made
pursuant to this article if the States Parties in question are not bound by a treaty
of mutual legal assistance. If those States Parties are bound by such a treaty, the
corresponding provisions of that treaty shall apply unless the States Parties agree
to apply paragraphs 9 to 29 of this article in lieu thereof. States Parties are
strongly encouraged to apply those paragraphs if they facilitate cooperation.
8. States Parties shall not decline to render mutual legal assistance
pursuant to this article on the ground of bank secrecy.
9. (a) A requested State Party, in responding to a request for
assistance pursuant to this article in the absence of dual criminality, shall take
into account the purposes of this Convention, as set forth in article 1;
(b) States Parties may decline to render assistance pursuant to this
article on the ground of absence of dual criminality. However, a requested State
Party shall, where consistent with the basic concepts of its legal system, render
assistance that does not involve coercive action. Such assistance may be refused
when requests involve matters of a de minimis nature or matters for which the
43
cooperation or assistance sought is available under other provisions of this
Convention;
(c) Each State Party may consider adopting such measures as may be
necessary to enable it to provide a wider scope of assistance pursuant to this
article in the absence of dual criminality.
10. A person who is being detained or is serving a sentence in the
territory of one State Party whose presence in another State Party is requested
for purposes of identification, testimony or otherwise providing assistance in
obtaining evidence for investigations, prosecutions or judicial proceedings in
relation to offences covered by this Convention may be transferred if the
following conditions are met:
(a) The person freely gives his or her informed consent;
(b) The competent authorities of both States Parties agree, subject to
such conditions as those States Parties may deem appropriate.
11. For the purposes of paragraph 10 of this article:
(a) The State Party to which the person is transferred shall have the
authority and obligation to keep the person transferred in custody, unless
otherwise requested or authorized by the State Party from which the person was
transferred;
(b) The State Party to which the person is transferred shall without
delay implement its obligation to return the person to the custody of the State
Party from which the person was transferred as agreed beforehand, or as
otherwise agreed, by the competent authorities of both States Parties;
(c) The State Party to which the person is transferred shall not require
the State Party from which the person was transferred to initiate extradition
44
proceedings for the return of the person;
(d) The person transferred shall receive credit for service of the
sentence being served in the State from which he or she was transferred for time
spent in the custody of the State Party to which he or she was transferred.
12. Unless the State Party from which a person is to be transferred in
accordance with paragraphs 10 and 11 of this article so agrees, that person,
whatever his or her nationality, shall not be prosecuted, detained, punished or
subjected to any other restriction of his or her personal liberty in the territory of
the State to which that person is transferred in respect of acts, omissions or
convictions prior to his or her departure from the territory of the State from
which he or she was transferred.
13. Each State Party shall designate a central authority that shall have
the responsibility and power to receive requests for mutual legal assistance and
either to execute them or to transmit them to the competent authorities for
execution. Where a State Party has a special region or territory with a separate
system of mutual legal assistance, it may designate a distinct central authority
that shall have the same function for that region or territory. Central authorities
shall ensure the speedy and proper execution or transmission of the requests
received. Where the central authority transmits the request to a competent
authority for execution, it shall encourage the speedy and proper execution of the
request by the competent authority. The Secretary-General of the United Nations
shall be notified of the central authority designated for this purpose at the time
each State Party deposits its instrument of ratification, acceptance or approval of
or accession to this Convention. Requests for mutual legal assistance and any
communication related thereto shall be transmitted to the central authorities
designated by the States Parties. This requirement shall be without prejudice to
the right of a State Party to require that such requests and communications be
addressed to it through diplomatic channels and, in urgent circumstances, where
45
the States Parties agree, through the International Criminal Police Organization,
if possible.
14. Requests shall be made in writing or, where possible, by any
means capable of producing a written record, in a language acceptable to the
requested State Party, under conditions allowing that State Party to establish
authenticity. The Secretary-General of the United Nations shall be notified of the
language or languages acceptable to each State Party at the time it deposits its
instrument of ratification, acceptance or approval of or accession to this
Convention. In urgent circumstances and where agreed by the States Parties,
requests may be made orally but shall be confirmed in writing forthwith.
15. A request for mutual legal assistance shall contain:
(a) The identity of the authority making the request;
(b) The subject matter and nature of the investigation, prosecution or
judicial proceeding to which the request relates and the name and functions of
the authority conducting the investigation, prosecution or judicial proceeding;
(c) A summary of the relevant facts, except in relation to requests for
the purpose of service of judicial documents;
(d) A description of the assistance sought and details of any particular
procedure that the requesting State Party wishes to be followed;
(e) Where possible, the identity, location and nationality of any person
concerned; and
(f) The purpose for which the evidence, information or action is
sought.
16. The requested State Party may request additional information when
it appears necessary for the execution of the request in accordance with its
46
domestic law or when it can facilitate such execution.
17. A request shall be executed in accordance with the domestic law of
the requested State Party and, to the extent not contrary to the domestic law of
the requested State Party and where possible, in accordance with the procedures
specified in the request.
18. Wherever possible and consistent with fundamental principles of
domestic law, when an individual is in the territory of a State Party and has to be
heard as a witness or expert by the judicial authorities of another State Party, the
first State Party may, at the request of the other, permit the hearing to take place
by video conference if it is not possible or desirable for the individual in
question to appear in person in the territory of the requesting State Party. States
Parties may agree that the hearing shall be conducted by a judicial authority of
the requesting State Party and attended by a judicial authority of the requested
State Party.
19. The requesting State Party shall not transmit or use information or
evidence furnished by the requested State Party for investigations, prosecutions
or judicial proceedings other than those stated in the request without the prior
consent of the requested State Party. Nothing in this paragraph shall prevent the
requesting State Party from disclosing in its proceedings information or evidence
that is exculpatory to an accused person. In the latter case, the requesting State
Party shall notify the requested State Party prior to the disclosure and, if so
requested, consult with the requested State Party. If, in an exceptional case,
advance notice is not possible, the requesting State Party shall inform the
requested State Party of the disclosure without delay.
20. The requesting State Party may require that the requested State
Party keep confidential the fact and substance of the request, except to the extent
necessary to execute the request. If the requested State Party cannot comply with
the requirement of confidentiality, it shall promptly inform the requesting State
47
Party.
21. Mutual legal assistance may be refused:
(a) If the request is not made in conformity with the provisions of this
article;
(b) If the requested State Party considers that execution of the request
is likely to prejudice its sovereignty, security, ordre public or other essential
interests;
(c) If the authorities of the requested State Party would be prohibited
by its domestic law from carrying out the action requested with regard to any
similar offence, had it been subject to investigation, prosecution or judicial
proceedings under their own jurisdiction;
(d) If it would be contrary to the legal system of the requested State
Party relating to mutual legal assistance for the request to be granted.
22. States Parties may not refuse a request for mutual legal assistance
on the sole ground that the offence is also considered to involve fiscal matters.
23. Reasons shall be given for any refusal of mutual legal assistance.
24. The requested State Party shall execute the request for mutual legal
assistance as soon as possible and shall take as full account as possible of any
deadlines suggested by the requesting State Party and for which reasons are
given, preferably in the request. The requesting State Party may make reasonable
requests for information on the status and progress of measures taken by the
requested State Party to satisfy its request. The requested State Party shall
respond to reasonable requests by the requesting State Party on the status, and
progress in its handling, of the request. The requesting State Party shall promptly
inform the requested State Party when the assistance sought is no longer required.
48
25. Mutual legal assistance may be postponed by the requested State
Party on the ground that it interferes with an ongoing investigation, prosecution
or judicial proceeding.
26. Before refusing a request pursuant to paragraph 21 of this article or
postponing its execution pursuant to paragraph 25 of this article, the requested
State Party shall consult with the requesting State Party to consider whether
assistance may be granted subject to such terms and conditions as it deems
necessary. If the requesting State Party accepts assistance subject to those
conditions, it shall comply with the conditions.
27. Without prejudice to the application of paragraph 12 of this article,
a witness, expert or other person who, at the request of the requesting State Party,
consents to give evidence in a proceeding or to assist in an investigation,
prosecution or judicial proceeding in the territory of the requesting State Party
shall not be prosecuted, detained, punished or subjected to any other restriction
of his or her personal liberty in that territory in respect of acts, omissions or
convictions prior to his or her departure from the territory of the requested State
Party. Such safe conduct shall cease when the witness, expert or other person
having had, for a period of fifteen consecutive days or for any period agreed
upon by the States Parties from the date on which he or she has been officially
informed that his or her presence is no longer required by the judicial authorities,
an opportunity of leaving, has nevertheless remained voluntarily in the territory
of the requesting State Party or, having left it, has returned of his or her own free
will.
28. The ordinary costs of executing a request shall be borne by the
requested State Party, unless otherwise agreed by the States Parties concerned. If
expenses of a substantial or extraordinary nature are or will be required to fulfil
the request, the States Parties shall consult to determine the terms and conditions
under which the request will be executed, as well as the manner in which the
49
costs shall be borne.
29. The requested State Party:
(a) Shall provide to the requesting State Party copies of government
records, documents or information in its possession that under its domestic law
are available to the general public;
(b) May, at its discretion, provide to the requesting State Party in
whole, in part or subject to such conditions as it deems appropriate, copies of
any government records, documents or information in its possession that under
its domestic law are not available to the general public.
30. States Parties shall consider, as may be necessary, the possibility of
concluding bilateral or multilateral agreements or arrangements that would serve
the purposes of, give practical effect to or enhance the provisions of this article.
Article 47
Transfer of criminal proceedings
States Parties shall consider the possibility of transferring to one another
proceedings for the prosecution of an offence established in accordance with this
Convention in cases where such transfer is considered to be in the interests of the
proper administration of justice, in particular in cases where several jurisdictions
are involved, with a view to concentrating the prosecution.
Article 48
Law enforcement cooperation
1. States Parties shall cooperate closely with one another, consistent
with their respective domestic legal and administrative systems, to enhance the
effectiveness of law enforcement action to combat the offences covered by this
Convention. States Parties shall, in particular, take effective measures:
50
(a) To enhance and, where necessary, to establish channels of
communication between their competent authorities, agencies and services in
order to facilitate the secure and rapid exchange of information concerning all
aspects of the offences covered by this Convention, including, if the States
Parties concerned deem it appropriate, links with other criminal activities;
(b) To cooperate with other States Parties in conducting inquiries with
respect to offences covered by this Convention concerning:
(i) The identity, whereabouts and activities of persons suspected of
involvement in such offences or the location of other persons concerned;
(ii) The movement of proceeds of crime or property derived from the
commission of such offences;
(iii) The movement of property, equipment or other instrumentalities
used or intended for use in the commission of such offences;
(c) To provide, where appropriate, necessary items or quantities of
substances for analytical or investigative purposes;
(d) To exchange, where appropriate, information with other States
Parties concerning specific means and methods used to commit offences covered
by this Convention, including the use of false identities, forged, altered or false
documents and other means of concealing activities;
(e) To facilitate effective coordination between their competent
authorities, agencies and services and to promote the exchange of personnel and
other experts, including, subject to bilateral agreements or arrangements between
the States Parties concerned, the posting of liaison officers;
(f) To exchange information and coordinate administrative and other
measures taken as appropriate for the purpose of early identification of the
51
offences covered by this Convention.
2. With a view to giving effect to this Convention, States Parties shall
consider entering into bilateral or multilateral agreements or arrangements on
direct cooperation between their law enforcement agencies and, where such
agreements or arrangements already exist, amending them. In the absence of
such agreements or arrangements between the States Parties concerned, the
States Parties may consider this Convention to be the basis for mutual law
enforcement cooperation in respect of the offences covered by this Convention.
Whenever appropriate, States Parties shall make full use of agreements or
arrangements, including international or regional organizations, to enhance the
cooperation between their law enforcement agencies.
3. States Parties shall endeavour to cooperate within their means to
respond to offences covered by this Convention committed through the use of
modern technology.
Article 49
Joint investigations
States Parties shall consider concluding bilateral or multilateral
agreements or arrangements whereby, in relation to matters that are the subject
of investigations, prosecutions or judicial proceedings in one or more States, the
competent authorities concerned may establish joint investigative bodies. In the
absence of such agreements or arrangements, joint investigations may be
undertaken by agreement on a case-by-case basis. The States Parties involved
shall ensure that the sovereignty of the State Party in whose territory such
investigation is to take place is fully respected.
Article 50
Special investigative techniques
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1. In order to combat corruption effectively, each State Party shall, to
the extent permitted by the basic principles of its domestic legal system and in
accordance with the conditions prescribed by its domestic law, take such
measures as may be necessary, within its means, to allow for the appropriate use
by its competent authorities of controlled delivery and, where it deems
appropriate, other special investigative techniques, such as electronic or other
forms of surveillance and undercover operations, within its territory, and to
allow for the admissibility in court of evidence derived therefrom.
2. For the purpose of investigating the offences covered by this
Convention, States Parties are encouraged to conclude, when necessary,
appropriate bilateral or multilateral agreements or arrangements for using such
special investigative techniques in the context of cooperation at the international
level. Such agreements or arrangements shall be concluded and implemented in
full compliance with the principle of sovereign equality of States and shall be
carried out strictly in accordance with the terms of those agreements or
arrangements.
3. In the absence of an agreement or arrangement as set forth in
paragraph 2 of this article, decisions to use such special investigative techniques
at the international level shall be made on a case-by-case basis and may, when
necessary, take into consideration financial arrangements and understandings
with respect to the exercise of jurisdiction by the States Parties concerned.
4. Decisions to use controlled delivery at the international level may,
with the consent of the States Parties concerned, include methods such as
intercepting and allowing the goods or funds to continue intact or be removed or
replaced in whole or in part.
Chapter V
Asset recovery
53
Article 51
General provision
The return of assets pursuant to this chapter is a fundamental principle
of this Convention, and States Parties shall afford one another the widest
measure of cooperation and assistance in this regard.
Article 52
Prevention and detection of transfers of proceeds of crime
1. Without prejudice to article 14 of this Convention, each State Party
shall take such measures as may be necessary, in accordance with its domestic
law, to require financial institutions within its jurisdiction to verify the identity
of customers, to take reasonable steps to determine the identity of beneficial
owners of funds deposited into high-value accounts and to conduct enhanced
scrutiny of accounts sought or maintained by or on behalf of individuals who are,
or have been, entrusted with prominent public functions and their family
members and close associates. Such enhanced scrutiny shall be reasonably
designed to detect suspicious transactions for the purpose of reporting to
competent authorities and should not be so construed as to discourage or prohibit
financial institutions from doing business with any legitimate customer.
2. In order to facilitate implementation of the measures provided for
in paragraph 1 of this article, each State Party, in accordance with its domestic
law and inspired by relevant initiatives of regional, interregional and multilateral
organizations against money-laundering, shall:
(a) Issue advisories regarding the types of natural or legal person to
whose accounts financial institutions within its jurisdiction will be expected to
apply enhanced scrutiny, the types of accounts and transactions to which to pay
particular attention and appropriate account-opening, maintenance and record-
keeping measures to take concerning such accounts; and
54
(b) Where appropriate, notify financial institutions within its
jurisdiction, at the request of another State Party or on its own initiative, of the
identity of particular natural or legal persons to whose accounts such institutions
will be expected to apply enhanced scrutiny, in addition to those whom the
financial institutions may otherwise identify.
3. In the context of paragraph 2 (a) of this article, each State Party
shall implement measures to ensure that its financial institutions maintain
adequate records, over an appropriate period of time, of accounts and
transactions involving the persons mentioned in paragraph 1 of this article,
which should, as a minimum, contain information relating to the identity of the
customer as well as, as far as possible, of the beneficial owner.
4. With the aim of preventing and detecting transfers of proceeds of
offences established in accordance with this Convention, each State Party shall
implement appropriate and effective measures to prevent, with the help of its
regulatory and oversight bodies, the establishment of banks that have no physical
presence and that are not affiliated with a regulated financial group. Moreover,
States Parties may consider requiring their financial institutions to refuse to enter
into or continue a correspondent banking relationship with such institutions and
to guard against establishing relations with foreign financial institutions that
permit their accounts to be used by banks that have no physical presence and that
are not affiliated with a regulated financial group.
5. Each State Party shall consider establishing, in accordance with its
domestic law, effective financial disclosure systems for appropriate public
officials and shall provide for appropriate sanctions for non-compliance. Each
State Party shall also consider taking such measures as may be necessary to
permit its competent authorities to share that information with the competent
authorities in other States Parties when necessary to investigate, claim and
recover proceeds of offences established in accordance with this Convention.
55
6. Each State Party shall consider taking such measures as may be
necessary, in accordance with its domestic law, to require appropriate public
officials having an interest in or signature or other authority over a financial
account in a foreign country to report that relationship to appropriate authorities
and to maintain appropriate records related to such accounts. Such measures
shall also provide for appropriate sanctions for non-compliance.
Article 53
Measures for direct recovery of property
Each State Party shall, in accordance with its domestic law:
(a) Take such measures as may be necessary to permit another State
Party to initiate civil action in its courts to establish title to or ownership of
property acquired through the commission of an offence established in
accordance with this Convention;
(b) Take such measures as may be necessary to permit its courts to
order those who have committed offences established in accordance with this
Convention to pay compensation or damages to another State Party that has been
harmed by such offences; and
(c) Take such measures as may be necessary to permit its courts or
competent authorities, when having to decide on confiscation, to recognize
another State Party’s claim as a legitimate owner of property acquired through
the commission of an offence established in accordance with this Convention.
Article 54
Mechanisms for recovery of property through international cooperation in confiscation
1. Each State Party, in order to provide mutual legal assistance
pursuant to article 55 of this Convention with respect to property acquired
56
through or involved in the commission of an offence established in accordance
with this Convention, shall, in accordance with its domestic law:
(a) Take such measures as may be necessary to permit its competent
authorities to give effect to an order of confiscation issued by a court of another
State Party;
(b) Take such measures as may be necessary to permit its competent
authorities, where they have jurisdiction, to order the confiscation of such
property of foreign origin by adjudication of an offence of money-laundering or
such other offence as may be within its jurisdiction or by other procedures
authorized under its domestic law; and
(c) Consider taking such measures as may be necessary to allow
confiscation of such property without a criminal conviction in cases in which the
offender cannot be prosecuted by reason of death, flight or absence or in other
appropriate cases.
2. Each State Party, in order to provide mutual legal assistance upon a
request made pursuant to paragraph 2 of article 55 of this Convention, shall, in
accordance with its domestic law:
(a) Take such measures as may be necessary to permit its competent
authorities to freeze or seize property upon a freezing or seizure order issued by
a court or competent authority of a requesting State Party that provides a
reasonable basis for the requested State Party to believe that there are sufficient
grounds for taking such actions and that the property would eventually be
subject to an order of confiscation for purposes of paragraph 1 (a) of this article;
(b) Take such measures as may be necessary to permit its competent
authorities to freeze or seize property upon a request that provides a reasonable
basis for the requested State Party to believe that there are sufficient grounds for
57
taking such actions and that the property would eventually be subject to an order
of confiscation for purposes of paragraph 1 (a) of this article; and
(c) Consider taking additional measures to permit its competent
authorities to preserve property for confiscation, such as on the basis of a foreign
arrest or criminal charge related to the acquisition of such property.
Article 55
International cooperation for purposes of confiscation
1. A State Party that has received a request from another State Party
having jurisdiction over an offence established in accordance with this
Convention for confiscation of proceeds of crime, property, equipment or other
instrumentalities referred to in article 31, paragraph 1, of this Convention
situated in its territory shall, to the greatest extent possible within its domestic
legal system:
(a) Submit the request to its competent authorities for the purpose of
obtaining an order of confiscation and, if such an order is granted, give effect to
it; or
(b) Submit to its competent authorities, with a view to giving effect to
it to the extent requested, an order of confiscation issued by a court in the
territory of the requesting State Party in accordance with articles 31, paragraph 1,
and 54, paragraph 1 (a), of this Convention insofar as it relates to proceeds of
crime, property, equipment or other instrumentalities referred to in article 31,
paragraph 1, situated in the territory of the requested State Party.
2. Following a request made by another State Party having
jurisdiction over an offence established in accordance with this Convention, the
requested State Party shall take measures to identify, trace and freeze or seize
proceeds of crime, property, equipment or other instrumentalities referred to in
58
article 31, paragraph 1, of this Convention for the purpose of eventual
confiscation to be ordered either by the requesting State Party or, pursuant to a
request under paragraph 1 of this article, by the requested State Party.
3. The provisions of article 46 of this Convention are applicable,
mutatis mutandis, to this article. In addition to the information specified in
article 46, paragraph 15, requests made pursuant to this article shall contain:
(a) In the case of a request pertaining to paragraph 1 (a) of this article,
a description of the property to be confiscated, including, to the extent possible,
the location and, where relevant, the estimated value of the property and a
statement of the facts relied upon by the requesting State Party sufficient to
enable the requested State Party to seek the order under its domestic law;
(b) In the case of a request pertaining to paragraph 1 (b) of this article,
a legally admissible copy of an order of confiscation upon which the request is
based issued by the requesting State Party, a statement of the facts and
information as to the extent to which execution of the order is requested, a
statement specifying the measures taken by the requesting State Party to provide
adequate notification to bona fide third parties and to ensure due process and a
statement that the confiscation order is final;
(c) In the case of a request pertaining to paragraph 2 of this article, a
statement of the facts relied upon by the requesting State Party and a description
of the actions requested and, where available, a legally admissible copy of an
order on which the request is based.
4. The decisions or actions provided for in paragraphs 1 and 2 of this
article shall be taken by the requested State Party in accordance with and subject
to the provisions of its domestic law and its procedural rules or any bilateral or
multilateral agreement or arrangement to which it may be bound in relation to
the requesting State Party.
59
5. Each State Party shall furnish copies of its laws and regulations
that give effect to this article and of any subsequent changes to such laws and
regulations or a description thereof to the Secretary-General of the United
Nations.
6. If a State Party elects to make the taking of the measures referred
to in paragraphs 1 and 2 of this article conditional on the existence of a relevant
treaty, that State Party shall consider this Convention the necessary and
sufficient treaty basis.
7. Cooperation under this article may also be refused or provisional
measures lifted if the requested State Party does not receive sufficient and timely
evidence or if the property is of a de minimis value.
8. Before lifting any provisional measure taken pursuant to this article,
the requested State Party shall, wherever possible, give the requesting State
Party an opportunity to present its reasons in favour of continuing the measure.
9. The provisions of this article shall not be construed as prejudicing
the rights of bona fide third parties.
Article 56
Special cooperation
Without prejudice to its domestic law, each State Party shall endeavour
to take measures to permit it to forward, without prejudice to its own
investigations, prosecutions or judicial proceedings, information on proceeds of
offences established in accordance with this Convention to another State Party
without prior request, when it considers that the disclosure of such information
might assist the receiving State Party in initiating or carrying out investigations,
prosecutions or judicial proceedings or might lead to a request by that State
Party under this chapter of the Convention.
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Article 57
Return and disposal of assets
1. Property confiscated by a State Party pursuant to article 31 or 55 of
this Convention shall be disposed of, including by return to its prior legitimate
owners, pursuant to paragraph 3 of this article, by that State Party in accordance
with the provisions of this Convention and its domestic law.
2. Each State Party shall adopt such legislative and other measures, in
accordance with the fundamental principles of its domestic law, as may be
necessary to enable its competent authorities to return confiscated property,
when acting on the request made by another State Party, in accordance with this
Convention, taking into account the rights of bona fide third parties.
3. In accordance with articles 46 and 55 of this Convention and
paragraphs 1 and 2 of this article, the requested State Party shall:
(a) In the case of embezzlement of public funds or of laundering of
embezzled public funds as referred to in articles 17 and 23 of this Convention,
when confiscation was executed in accordance with article 55 and on the basis of
a final judgement in the requesting State Party, a requirement that can be waived
by the requested State Party, return the confiscated property to the requesting
State Party;
(b) In the case of proceeds of any other offence covered by this
Convention, when the confiscation was executed in accordance with article 55 of
this Convention and on the basis of a final judgement in the requesting State
Party, a requirement that can be waived by the requested State Party, return the
confiscated property to the requesting State Party, when the requesting State
Party reasonably establishes its prior ownership of such confiscated property to
the requested State Party or when the requested State Party recognizes damage to
the requesting State Party as a basis for returning the confiscated property;
61
(c) In all other cases, give priority consideration to returning
confiscated property to the requesting State Party, returning such property to its
prior legitimate owners or compensating the victims of the crime.
4. Where appropriate, unless States Parties decide otherwise, the
requested State Party may deduct reasonable expenses incurred in investigations,
prosecutions or judicial proceedings leading to the return or disposition of
confiscated property pursuant to this article.
5. Where appropriate, States Parties may also give special
consideration to concluding agreements or mutually acceptable arrangements, on
a case-by-case basis, for the final disposal of confiscated property.
Article 58
Financial intelligence unit
States Parties shall cooperate with one another for the purpose of
preventing and combating the transfer of proceeds of offences established in
accordance with this Convention and of promoting ways and means of
recovering such proceeds and, to that end, shall consider establishing a financial
intelligence unit to be responsible for receiving, analysing and disseminating to
the competent authorities reports of suspicious financial transactions.
Article 59
Bilateral and multilateral agreements and arrangements
States Parties shall consider concluding bilateral or multilateral
agreements or arrangements to enhance the effectiveness of international
cooperation undertaken pursuant to this chapter of the Convention.
Chapter VI
Technical assistance and information exchange
62
Article 60
Training and technical assistance
1. Each State Party shall, to the extent necessary, initiate, develop or
improve specific training programmes for its personnel responsible for
preventing and combating corruption. Such training programmes could deal,
inter alia, with the following areas:
(a) Effective measures to prevent, detect, investigate, punish and
control corruption, including the use of evidence-gathering and investigative
methods;
(b) Building capacity in the development and planning of strategic
anti-corruption policy;
(c) Training competent authorities in the preparation of requests for
mutual legal assistance that meet the requirements of this Convention;
(d) Evaluation and strengthening of institutions, public service
management and the management of public finances, including public
procurement, and the private sector;
(e) Preventing and combating the transfer of proceeds of offences
established in accordance with this Convention and recovering such proceeds;
(f) Detecting and freezing of the transfer of proceeds of offences
established in accordance with this Convention;
(g) Surveillance of the movement of proceeds of offences established
in accordance with this Convention and of the methods used to transfer, conceal
or disguise such proceeds;
(h) Appropriate and efficient legal and administrative mechanisms and
methods for facilitating the return of proceeds of offences established in
63
accordance with this Convention;
(i) Methods used in protecting victims and witnesses who cooperate
with judicial authorities; and
(j) Training in national and international regulations and in languages.
2. States Parties shall, according to their capacity, consider affording
one another the widest measure of technical assistance, especially for the benefit
of developing countries, in their respective plans and programmes to combat
corruption, including material support and training in the areas referred to in
paragraph 1 of this article, and training and assistance and the mutual exchange
of relevant experience and specialized knowledge, which will facilitate
international cooperation between States Parties in the areas of extradition and
mutual legal assistance.
3. States Parties shall strengthen, to the extent necessary, efforts to
maximize operational and training activities in international and regional
organizations and in the framework of relevant bilateral and multilateral
agreements or arrangements.
4. States Parties shall consider assisting one another, upon request, in
conducting evaluations, studies and research relating to the types, causes, effects
and costs of corruption in their respective countries, with a view to developing,
with the participation of competent authorities and society, strategies and action
plans to combat corruption.
5. In order to facilitate the recovery of proceeds of offences
established in accordance with this Convention, States Parties may cooperate in
providing each other with the names of experts who could assist in achieving
that objective.
6. States Parties shall consider using subregional, regional and
64
international conferences and seminars to promote cooperation and technical
assistance and to stimulate discussion on problems of mutual concern, including
the special problems and needs of developing countries and countries with
economies in transition.
7. States Parties shall consider establishing voluntary mechanisms
with a view to contributing financially to the efforts of developing countries and
countries with economies in transition to apply this Convention through
technical assistance programmes and projects.
8. Each State Party shall consider making voluntary contributions to
the United Nations Office on Drugs and Crime for the purpose of fostering,
through the Office, programmes and projects in developing countries with a
view to implementing this Convention.
Article 61
Collection, exchange and analysis of information on corruption
1. Each State Party shall consider analysing, in consultation with
experts, trends in corruption in its territory, as well as the circumstances in
which corruption offences are committed.
2. States Parties shall consider developing and sharing with each
other and through international and regional organizations statistics, analytical
expertise concerning corruption and information with a view to developing,
insofar as possible, common definitions, standards and methodologies, as well as
information on best practices to prevent and combat corruption.
3. Each State Party shall consider monitoring its policies and actual
measures to combat corruption and making assessments of their effectiveness
and efficiency.
65
Article 62
Other measures: implementation of the Convention through economic development and
technical assistance
1. States Parties shall take measures conducive to the optimal
implementation of this Convention to the extent possible, through international
cooperation, taking into account the negative effects of corruption on society in
general, in particular on sustainable development.
2. States Parties shall make concrete efforts to the extent possible and
in coordination with each other, as well as with international and regional
organizations:
(a) To enhance their cooperation at various levels with developing
countries, with a view to strengthening the capacity of the latter to prevent and
combat corruption;
(b) To enhance financial and material assistance to support the efforts
of developing countries to prevent and fight corruption effectively and to help
them implement this Convention successfully;
(c) To provide technical assistance to developing countries and
countries with economies in transition to assist them in meeting their needs for
the implementation of this Convention. To that end, States Parties shall
endeavour to make adequate and regular voluntary contributions to an account
specifically designated for that purpose in a United Nations funding mechanism.
States Parties may also give special consideration, in accordance with their
domestic law and the provisions of this Convention, to contributing to that
account a percentage of the money or of the corresponding value of proceeds of
crime or property confiscated in accordance with the provisions of this
Convention;
66
(d) To encourage and persuade other States and financial institutions
as appropriate to join them in efforts in accordance with this article, in particular
by providing more training programmes and modern equipment to developing
countries in order to assist them in achieving the objectives of this Convention.
3. To the extent possible, these measures shall be without prejudice to
existing foreign assistance commitments or to other financial cooperation
arrangements at the bilateral, regional or international level.
4. States Parties may conclude bilateral or multilateral agreements or
arrangements on material and logistical assistance, taking into consideration the
financial arrangements necessary for the means of international cooperation
provided for by this Convention to be effective and for the prevention, detection
and control of corruption.
Chapter VII
Mechanisms for implementation
Article 63
Conference of the States Parties to the Convention
1. A Conference of the States Parties to the Convention is hereby
established to improve the capacity of and cooperation between States Parties to
achieve the objectives set forth in this Convention and to promote and review its
implementation.
2. The Secretary-General of the United Nations shall convene the
Conference of the States Parties not later than one year following the entry into
force of this Convention. Thereafter, regular meetings of the Conference of the
States Parties shall be held in accordance with the rules of procedure adopted by
the Conference.
3. The Conference of the States Parties shall adopt rules of procedure
67
and rules governing the functioning of the activities set forth in this article,
including rules concerning the admission and participation of observers, and the
payment of expenses incurred in carrying out those activities.
4. The Conference of the States Parties shall agree upon activities,
procedures and methods of work to achieve the objectives set forth in paragraph
1 of this article, including:
(a) Facilitating activities by States Parties under articles 60 and 62 and
chapters II to V of this Convention, including by encouraging the mobilization
of voluntary contributions;
(b) Facilitating the exchange of information among States Parties on
patterns and trends in corruption and on successful practices for preventing and
combating it and for the return of proceeds of crime, through, inter alia, the
publication of relevant information as mentioned in this article;
(c) Cooperating with relevant international and regional organizations
and mechanisms and non-governmental organizations;
(d) Making appropriate use of relevant information produced by other
international and regional mechanisms for combating and preventing corruption
in order to avoid unnecessary duplication of work;
(e) Reviewing periodically the implementation of this Convention by
its States Parties;
(f) Making recommendations to improve this Convention and its
implementation;
(g) Taking note of the technical assistance requirements of States
Parties with regard to the implementation of this Convention and recommending
any action it may deem necessary in that respect.
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5. For the purpose of paragraph 4 of this article, the Conference of the
States Parties shall acquire the necessary knowledge of the measures taken by
States Parties in implementing this Convention and the difficulties encountered
by them in doing so through information provided by them and through such
supplemental review mechanisms as may be established by the Conference of
the States Parties.
6. Each State Party shall provide the Conference of the States Parties
with information on its programmes, plans and practices, as well as on
legislative and administrative measures to implement this Convention, as
required by the Conference of the States Parties. The Conference of the States
Parties shall examine the most effective way of receiving and acting upon
information, including, inter alia, information received from States Parties and
from competent international organizations. Inputs received from relevant non-
governmental organizations duly accredited in accordance with procedures to be
decided upon by the Conference of the States Parties may also be considered.
7. Pursuant to paragraphs 4 to 6 of this article, the Conference of the
States Parties shall establish, if it deems it necessary, any appropriate mechanism
or body to assist in the effective implementation of the Convention.
Article 64
Secretariat
1. The Secretary-General of the United Nations shall provide the
necessary secretariat services to the Conference of the States Parties to the
Convention.
2. The secretariat shall:
(a) Assist the Conference of the States Parties in carrying out the
activities set forth in article 63 of this Convention and make arrangements and
69
provide the necessary services for the sessions of the Conference of the States
Parties;
(b) Upon request, assist States Parties in providing information to the
Conference of the States Parties as envisaged in article 63, paragraphs 5 and 6,
of this Convention; and
(c) Ensure the necessary coordination with the secretariats of relevant
international and regional organizations.
Chapter VIII
Final provisions
Article 65
Implementation of the Convention
1. Each State Party shall take the necessary measures, including
legislative and administrative measures, in accordance with fundamental
principles of its domestic law, to ensure the implementation of its obligations
under this Convention.
2. Each State Party may adopt more strict or severe measures than
those provided for by this Convention for preventing and combating corruption.
Article 66
Settlement of disputes
l. States Parties shall endeavour to settle disputes concerning the
interpretation or application of this Convention through negotiation.
2. Any dispute between two or more States Parties concerning the
interpretation or application of this Convention that cannot be settled through
negotiation within a reasonable time shall, at the request of one of those States
Parties, be submitted to arbitration. If, six months after the date of the request for
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arbitration, those States Parties are unable to agree on the organization of the
arbitration, any one of those States Parties may refer the dispute to the
International Court of Justice by request in accordance with the Statute of the
Court.
3. Each State Party may, at the time of signature, ratification,
acceptance or approval of or accession to this Convention, declare that it does
not consider itself bound by paragraph 2 of this article. The other States Parties
shall not be bound by paragraph 2 of this article with respect to any State Party
that has made such a reservation.
4. Any State Party that has made a reservation in accordance with
paragraph 3 of this article may at any time withdraw that reservation by
notification to the Secretary-General of the United Nations.
Article 67
Signature, ratification, acceptance, approval and accession
1. This Convention shall be open to all States for signature from 9 to
11 December 2003 in Merida, Mexico, and thereafter at United Nations
Headquarters in New York until 9 December 2005.
2. This Convention shall also be open for signature by regional
economic integration organizations provided that at least one member State of
such organization has signed this Convention in accordance with paragraph 1 of
this article.
3. This Convention is subject to ratification, acceptance or approval.
Instruments of ratification, acceptance or approval shall be deposited with the
Secretary-General of the United Nations. A regional economic integration
organization may deposit its instrument of ratification, acceptance or approval if
at least one of its member States has done likewise. In that instrument of
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ratification, acceptance or approval, such organization shall declare the extent of
its competence with respect to the matters governed by this Convention. Such
organization shall also inform the depositary of any relevant modification in the
extent of its competence.
4. This Convention is open for accession by any State or any regional
economic integration organization of which at least one member State is a Party
to this Convention. Instruments of accession shall be deposited with the
Secretary-General of the United Nations. At the time of its accession, a regional
economic integration organization shall declare the extent of its competence with
respect to matters governed by this Convention. Such organization shall also
inform the depositary of any relevant modification in the extent of its
competence.
Article 68
Entry into force
1. This Convention shall enter into force on the ninetieth day after the
date of deposit of the thirtieth instrument of ratification, acceptance, approval or
accession. For the purpose of this paragraph, any instrument deposited by a
regional economic integration organization shall not be counted as additional to
those deposited by member States of such organization.
2. For each State or regional economic integration organization
ratifying, accepting, approving or acceding to this Convention after the deposit
of the thirtieth instrument of such action, this Convention shall enter into force
on the thirtieth day after the date of deposit by such State or organization of the
relevant instrument or on the date this Convention enters into force pursuant to
paragraph 1 of this article, whichever is later.
Article 69
Amendment
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1. After the expiry of five years from the entry into force of this
Convention, a State Party may propose an amendment and transmit it to the
Secretary-General of the United Nations, who shall thereupon communicate the
proposed amendment to the States Parties and to the Conference of the States
Parties to the Convention for the purpose of considering and deciding on the
proposal. The Conference of the States Parties shall make every effort to achieve
consensus on each amendment. If all efforts at consensus have been exhausted
and no agreement has been reached, the amendment shall, as a last resort, require
for its adoption a two-thirds majority vote of the States Parties present and
voting at the meeting of the Conference of the States Parties.
2. Regional economic integration organizations, in matters within
their competence, shall exercise their right to vote under this article with a
number of votes equal to the number of their member States that are Parties to
this Convention. Such organizations shall not exercise their right to vote if their
member States exercise theirs and vice versa.
3. An amendment adopted in accordance with paragraph 1 of this
article is subject to ratification, acceptance or approval by States Parties.
4. An amendment adopted in accordance with paragraph 1 of this
article shall enter into force in respect of a State Party ninety days after the date
of the deposit with the Secretary-General of the United Nations of an instrument
of ratification, acceptance or approval of such amendment.
5. When an amendment enters into force, it shall be binding on those
States Parties which have expressed their consent to be bound by it. Other States
Parties shall still be bound by the provisions of this Convention and any earlier
amendments that they have ratified, accepted or approved.
Article 70
Denunciation
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1. A State Party may denounce this Convention by written
notification to the Secretary-General of the United Nations. Such denunciation
shall become effective one year after the date of receipt of the notification by the
Secretary-General.
2. A regional economic integration organization shall cease to be a
Party to this Convention when all of its member States have denounced it.
Article 71
Depositary and languages
1. The Secretary-General of the United Nations is designated
depositary of this Convention.
2. The original of this Convention, of which the Arabic, Chinese,
English, French, Russian and Spanish texts are equally authentic, shall be
deposited with the Secretary-General of the United Nations.
IN WITNESS WHEREOF, the undersigned plenipotentiaries, being
duly authorized thereto by their respective Governments, have signed this
Convention.
SCHEDULE 2 [s. 2]
MODIFICATIONS TO THE ORDINANCE
1. Section 17(3)(b) of the Ordinance shall be modified to read as follows –
“(b) the person has had an opportunity of leaving Hong Kong and has
remained in Hong Kong for the specified period from the date of
being officially informed that his presence is no longer required for
any of the following purposes* otherwise than for ** –
(i) the purpose to which the request relates; or**
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(ii) the purpose of giving assistance in relation to a criminal
matter in Hong Kong certified in writing by the Secretary
for Justice to be a criminal matter in relation to which it is
desirable that the person give assistance.”.
2. Section 17 of the Ordinance shall be modified by adding –
“(6) In subsection (3)(b), “specified period” (指明期間)means –
(a) in the case where a period has been agreed between Hong
Kong and the place outside Hong Kong to which the
request relates, that period; and
(b) in the case where no such period has been agreed, a period
of 15 consecutive days.*”.
* The words underlined are added. (The underlining is for ease of
identifying the modification).
** The words crossed out are deleted. (The crossing out is for ease of
identifying the modification).
Clerk to the Executive Council
COUNCIL CHAMBER
22 May 2007
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Explanatory Note
The Mutual Legal Assistance in Criminal Matters Ordinance (Cap. 525)
(“the Ordinance”) regulates the provision and obtaining of assistance in criminal
matters between Hong Kong and places outside Hong Kong (other than any
other part of the People’s Republic of China).
2. The Central People’s Government of the People’s Republic of China has
ratified the United Nations Convention against Corruption (“the Convention”)
and the Convention entered into force for the People’s Republic of China,
including Hong Kong, on 12 February 2006. The Convention provides for, inter
alia, the arrangements for mutual legal assistance in relation to the offences
covered by the Convention.
3. This Order directs that the Ordinance shall apply as between Hong Kong
and the places outside Hong Kong to which the Convention relates. A copy of
the Convention is annexed at Schedule 1 to the Order. The Ordinance is to apply
subject to the modifications specified in Schedule 2 to the Order.